For the second time, a Labour Government has been warned by Europe’s most senior human rights official about potentially breaching the European Convention on Human Rights. This warning follows the first instance, which led to the Gender Recognition Act 2004.
Michael O’Flaherty, the Council of Europe Commissioner for Human Rights, wrote to the Chairs of Parliament’s Committees for Women and Equalities and Human Rights in response to the Supreme Court’s recent ruling on the legal definition of a woman.
This warning comes amidst the Equality and Human Rights Commission (EHRC) withdrawing its interim guidance on the treatment of transgender people in public places. The EHRC aims to pressure the updated guidance to pass without parliamentary scrutiny.
Mr O’Flaherty cautioned against viewing the human rights of different groups as a ‘zero-sum game’, emphasising that such an approach would exacerbate prejudice against transgender individuals. He also stressed the importance of ensuring that transgender people do not feel confined to a ‘zone not quite one gender or the other’.
He wrote: “I observe a tendency to see the human rights of different groups as a zero-sum game. This has contributed to narratives which build on prejudice against trans people and portray upholding their human rights as a de facto threat to the rights of others.
“Such a zero-sum approach risks certain inferences being drawn from the UK Supreme Court judgment that could lead to widespread exclusion of trans people from many public spaces.”
He also said that exclusion could see members of the trans community feel robbed from ‘participating fully and equally in society’. The letter has been welcomed by Stonewall who agreed there were serious concerns regarding the current climate in the UK.
Respect for human dignity and human freedom are fundamental British values,” a spokesperson for the charity said. “As we have said before, we remain concerned that unless the EHRC’s draft Code is seriously revised, the starting point will be one of exclusion which could create legal risk for businesses across the UK.
“Government lawyers now need to carefully assess whether the EHRC’s draft Code of Practice is consistent with key international human rights obligations, and existing domestic legislation, before the Minister approves the Code.”
Stonewall also expressed concerns about how the planned Code of Practice would be rushed ‘into force’ without any opportunity to criticise or amend certain aspects.
It added: “While the Code of Practice will be laid in Parliament for 40 days before coming into force, MPs and Lords have no guaranteed opportunities to scrutinise or debate the guidance.
“The EHRC’s guidance needs to be clear, practical, and proportionate, and in line with well-established human rights principles.”
I hope this reverses the course of what this Labour government is doing, but I am not hopeful.
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